This matter comes before the Court on the motion [Docket Item 12] of Plaintiff Buzz Bee Toys, Inc., (" Buzz Bee" ) for a preliminary injunction against Defendants Swimways Corporation (" Swimways" ) and Target Corporation (" Target" ). Buzz Bee claims that Defendant Swimways copied four models of Plaintiff's WATER WARRIORS waterguns by using confusingly similar and infringing trade dresses and that Defendant Target now offers Swimways' infringing products instead of Plaintiff's products, which Target used to offer. (Am. Compl. ¶ 99.) Plaintiff's principal claim for purposes of this preliminary injunction motion is that the Defendants have infringed Plaintiff's unregistered trade dress in violation of § 43(a) of the Lanham act, 15 U.S.C. § 1125(a).[1] The Court held a preliminary injunction hearing on May 14, 2014.

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Plaintiff seeks a preliminary injunction precluding Defendants from selling Swimways' allegedly infringing products and ordering them to recall the infringing products. Defendants' products are remarkably similar to Plaintiff's products, but Plaintiff's motion will be denied. A preliminary injunction is an extraordinary remedy that should only be used in limited circumstances. Plaintiff has not shown that these circumstances warrant injunctive relief: Plaintiff has not shown a likelihood of success on the merits because it has not shown that its trade dresses have acquired secondary meaning. In addition, Plaintiff has not shown that irreparable harm is likely, if the injunction does not issue.

The following constitute the Court's findings of fact and conclusions of law in this preliminary injunction motion pursuant to Rule 65(a), Fed. R. Civ. P.

II. BACKGROUND

A. Factual Background

1. Plaintiff Buzz Bee

Buzz Bee designs, markets, and distributes various toys, including water squirting toys. Buzz Bee was formed in 2002 and has less than 50 employees. (Zimmerman 2nd Decl. [Docket Item 37] ¶ 47.) Jeffrey C. Zimmerman has been Buzz Bee's president since 2002. (Zimmerman 1st Decl. [Docket Item 13] ¶ 1.) Since Zimmerman has worked for Buzz Bee, he has launched over 100 waterguns. (Zimmerman 2nd Decl. ¶ 40.) Only 10-15% of those toys have been successful enough to last more than one or two seasons. (Id.)

Buzz Bee's design process begins with meetings to decide what product is needed, and then the company designs, prepares drawings, determines a target price, engineers, and manufactures a hand sample. (Id. ¶ 19.) This initial process lasts five to six months. (Id.) The manufacturer then requires three to four months to produce commercial products. (Id.)

Buzz Bee packages its toy water shooters in open front packaging because customers wish to see the actual product before purchasing, because open packaging spotlights the product design, and because water shooters with open packaging sell better than those with closed packaging. (Id. ¶ 60.)

Buzz Bee sells primarily through retail stores and does not advertise its toys; however, at least ten times per year, its water shooters are advertised in retailers' print advertising inserts. (Id. ¶ 62.) No such advertising, however, is in evidence. The annual value of the retailers' advertisements of Buzz Bee's products is estimated by Plaintiff as approximately $500,000.00. (Id.) Retailer customers, such as Target and Wal-Mart, have also advertised Buzz Bee's toys on their websites. (Id. ¶ 64.)

2. Plaintiff's WATER WARRIORS Product Line

Buzz Bee has a product line entitled WATER WARRIORS, which includes the AVENGER, KWIK GRIP XL, ARGON, and XENON water squirting toys, which are the four models whose trade dress Buzz Bee seeks to protect. WATER WARRIORS products are some of Buzz Bee's most popular models, and they represent

Zimmerman asserts that the WATER WARRIORS trade dresses are non-functional because the water squirting elements are internal mechanisms.

Plaintiff articulates the AVENGER's trade dress as:

(i) a raised portion along the top of the rear body portion, having a downwardly sloping body element crossing forwardly along the rear body portion, a forward wavy top projection and a forward wavy lower projection with a wave-like arcuate design pointing rearward formed between the top projection and the lower projection; (ii) an irregularly shaped inlay having a forward point located in the rear body portion; (iii) a front and bottom body portion having a complementary wave-like shape to meet the rear body portion, a grip portion having a raised back, a downwardly extending trigger guard portion having an arcuate design inlay pointing forward, a forward raised conical portion; (iv) a forward stock portion having three sloped ridges; and (v) a cylindrical orange muzzle portion.

AVENGER toys are sold through the internet, catalogs, and retail chains, such as Target and K-mart. (Id. ¶ 14.) Buzz Bee has not sold the AVENGER at Target for the last few years, but the product has been available at other retailers, including Kmart and Variety Distributors, continuously since its launch. (Zimmerman 2nd Decl ¶ 35.) Since 2007, 102,684 AVENGER units have been sold and sales totaled $206,352.00. (Zimmerman 1st Decl. ¶ ¶ 12-13.) The AVENGER sells for between $4.99 and $5.99. (Id. ¶ 17.) Zimmerman claims that both consumers and the trade associate the AVENGER trade dress with Buzz Bee as the source. (Id. ¶ 18.)

(i) a semi-transparent dome fill tank; (ii) an oval body element overlaying the tank; (iii) a grip having two rear ridges; (iv) a trigger guard having a ridged inset at the front end of the trigger guard; (v) side and top arcuate body pieces; (vi) futuristic coil design element having three forwardly-slanted " bubble" protrusions and a forwardly pointing " bubble" arrow portion with a larger dot and a smaller dot; and (vii) a muzzle portion having horizontal ridges.

KWIK GRIP XL toys are sold through the internet, catalogs, and retail chains such as Target and Walgreens. (Id. ¶ 27.) KWIK GRIP XL toys are usually sold in three- or four-packs, and 2,033,223 KWIK GRIP XL units have been sold with total

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sales of $4,197,858.00. (Id. ¶ ¶ 25-26.) The suggested retail prices are $2.49 for one, $4.99 for the two-pack, $5.99 for the three-pack, and $9.99 for the four-pack. (Id. ¶ 30.)

Plaintiff articulates the ARGON trade dress as:

(i) an upper tank portion defining the upper rear body; (ii) an overlaying side portion including an oval body element overlaying the tank, four futuristic bubble portions extending downward adjacent the oval body element, and two forwardly extending sweeping projections; (iii) a grip having a ridged handle portion; (iv) a lower central circular element in front of the trigger guard, having radial projections and ridges for a " sun-like" appearance; (v) a forward side element including two bubble-like forwardly sloping upward projections and a forward oval element; (vi) a forwardly pointing L-shaped projection along the upper front spine of the body, defining a triangular opening; (vii) a conical muzzle portion having raised trapezoidal ridges; and (viii) a ridged forestock grip.

(Am. Compl. ¶ 58 (letters referencing arrows on diagram omitted).) Over 368,000 ARGON units have been sold, and sales total $1,584,000.00. (Zimmerman 1st Decl. ¶ ¶ 38-39.) The ARGON is sold through the internet, catalogs, and retail chains such as Target and K-Mart. (Id. ¶ 40.) Its suggested retail price is $9.99. (Id. ¶ 43.)

Plaintiff articulates the XENON trade dress as:

(i) an upper tank portion defining the upper rear body; (ii) a rearwardly pointing fang-shaped portion defining a sticker-receiving area; (iii) a grip having a ridged handle portion; (iv) a lower central circular element in front of the trigger guard, having radial projections and ridges for a " sun-like" appearance; (v) futuristic bubble projections on the sides of the body between elements (ii) and (iv); (vi) a forward side arrow-head shaped element having a notch in the rear portion; (vii) a forwardly pointing L-shaped projection along the upper front spine of the body, defining a triangular inset portion; (vii) a conical muzzle portion having raised fins; (viii) a ridges forestock grip; and (ix) an oval rear side element.

(Am. Compl. ¶ 80 (letters referencing arrows on diagram omitted).) At least 238,000 XENON units have been sold, and sales total $1,561,000.00. (Zimmerman 1st Decl. ¶ 52.) The XENON is sold through the internet, catalogs, and retail chains such as Target and Walgreens. (Id. ¶ 53.) Its suggested retail price is $14.99. (Id. ¶ 56.)

The XENON and ARGON trade dresses were used from 2004 to 2009, when Buzz Bee ceased selling the XENON and ARGON products due to a consent judgment with Hasbro Inc. resolving patent litigation relating to the internal mechanisms. (Id. ¶ 50; Zimmerman 2nd Decl. ¶ 36.) Buzz Bee plans to re-launch both products in 2015. (Zimmerman 2nd Decl. ¶ 36.) Since XENON and ARGON products are not on the market, and have not been sold for five years, there is no prospect that Defendants are causing harm at this time through sale of similar products, namely, the AVALANCHE and TSUNAMI, respectively.

Zimmerman asserts that " [t]he fact that Buzz Bee's AVENGER, KWIK GRIP XL, XENON, and ARGON water shooting toys have remained popular for so long is a testament to the value of those products' designs and their popularity with consumers." (Id. ¶ 40.) Again, this contention is unlikely to be proved with regard to the

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XENON and ARGON models that have not been sold for five years.

In August 2013, one of Target's buying agents informed Buzz Bee that Target would not stock the WATER WARRIORS line in 2014. (Zimmerman 1st Decl. ¶ 62.)

Buzz Bee has not obtained design patents for any of these models, nor does Buzz Bee allege trademark infringement.

Swimways presented the modified toys to Target at a line review in July 2013. (Id. ¶ 11.) Swimways agreed to offer its FLOOD FORCE line exclusively through Target. (Id. ¶ 12.) Shortly after the review, Target informed Swimways that it would sell Swimways' toys for the upcoming season. (Id. ¶ 13.)

No evidence, at present, contradicts Swimways' assertions that its choice of these designs was based on a generic catalog rather than on its intentional copying of the Plaintiff's WATER WARRIORS designs.

As evidence of the similarity between Buzz Bee's and Swimways' products, Plaintiff provided a February 12, 2014 post from the " BUFFDADDY NERF" blog, in which the blogger " ma[de] a large post covering air and water blasters . . . ." (Id. Ex. Z at 1.) The blogger provided pictures of Swimways products he had recently seen at Target and said that Swimways' AVALANCE was " [a] close copy of the Water Warriors Xenon," Swimways' TSUNAMI was " [a] copy of the Water Warriors

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Argon," Swimways' STRYKER units were " [r]eshells of one of the original Water Warriors Kwik Grips XL," and " there was also a piston blaster virtually identical to the Water Warriors Avenger." (Id. at 3-4.) The blogger noted that Swimways' toys " appear to use old blaster molds. However, they appear to have either pinch triggers, or some sort of alternative valve mechanism . . . ." (Id. at 3.)

Defendants note that various manufacturers, including Buzz Bee, were present at Target's July 2013 line review. (Balam Decl. ¶ 11.) Buzz Bee's president Zimmerman stated that participants in Target's July 2013 line review process were unaware which other entities were participating because each manufacturer was in a separate room displaying its products. (Zimmerman 2nd Decl. ¶ 22.) The Target buyer went into each room to view the displays and negotiate with the manufacturer. (Id.) Zimmerman emphasized that " [a]t no time do any of the manufacturers see their competitors' product line. However, . . . it should have been readily apparent to the Target buyer, if they didn't already know, that the Swimways' product line was a copy of Buzz Bee's product line." (Id.)

Swimways claims that many of its products' features are functional. For example, transparent or semi-transparent reservoirs allows users to determine the water level and ridged handles and pumps improve grip. (Balam Decl. ¶ ¶ 24-26.) Swimways also asserts that various other design features, such as orange muzzles, are mandated by federal law.

Plaintiff attached to its reply brief pictures taken on April 26, 2014 in the Voorhees, N.J. Target store. (Pl. reply Snyder Decl. Ex. 5 [Docket Item 38-5].) The pictures show, inter alia, SUPER SOAKER waterguns that are available for sale next to Swimways' products and that look nothing like Swimways' or Buzz Bee's products, despite having orange muzzles and ridges.

5. Third Parties' Water Shooter Toys

Swimways' vice president of sales, Balam, identified third parties selling water squirting toys similar to the WATER WARRIORS products. (Balam Decl. ¶ 20.) For example, Swimways alleges that FunX Toys sells the Stealth Drencher F4, which " make[s] use of nearly every aspect of Buzz Bee's alleged KWIK GRIP XL Trade Dress." (Id. ¶ 21.) Balam identified other products that are also similar to the WATER WARRIORS products, including the " Poolmaster Action Water Pumper," " Space Squirt Guns," " Vintage Space Squirt Gun," " Xtreme Water Blaster 2 pack," and " Water Sports CSG X5 Water Gun." (Id. ¶ 23.)

In his second declaration, Buzz Bee's president, Zimmerman, stated that he was unaware of these infringing products and that he would investigate them and, in the case of FunX toys, instruct his attorneys to file a lawsuit on May 12, 2014, after they finished their reply brief for the present motion. (Zimmerman 2nd Decl. ¶ ¶ 24-29.)[4] Zimmerman noted that one of the products Balam referenced was being sold by a private buyer on eBay and other products that Balam referenced were available on Chinese websites that are notorious for selling counterfeit goods. (Id. ¶ ¶ 25-28.)

6. Impact of the Alleged Infringement on Plaintiff

Defendant Target represented 15-20% of Buzz Bee's market for the WATER

Buzz Bee president Zimmerman asserts that now is the prime season for consumer purchases of waterguns. (Id. ¶ 57.) After July 4th, the majority of water shooting toys will have been sold and by mid-July, retailers will sell water shooters at a discount to clear out inventory. (Id. ¶ 57.) Zimmerman also states that retail buyers will select water shooting toys for the 2015 season between now and July. (Id.) For example, Wal-Mart will choose its waterguns by May 16th. (Id.)

Zimmerman also asserts that, if Swimways continues to sell infringing products, competitors, Chinese manufacturers, and U.S. retail buyers will consider Buzz Bee's trade dress to be " open market," meaning that Buzz Bee's products will be copied with impunity, Buzz Bee will be unable to prevent future and ongoing infringement, Buzz Bee will be unable to regain the goodwill in its products' appearance, and all of Buzz Bee's work will be lost. (Id. ¶ 58.) Zimmerman claims that open copying will diminish Buzz Bee's reputation and goodwill for producing unique, ...

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